UNITED STATES v. FOOSE

This Defendant has filed a Motion to Suppress evidence, Methaqualone (hereinafter "M"), seized in the execution of a search warrant allegedly issued without probable cause. The Motion will be denied.

On April 11, 1975, United States Magistrate William L. Glosser issued search warrants for the premises at 6001 Sixth Avenue and 1614 Second Avenue, Altoona, Pennsylvania, on the Affidavit of Roy L. Upton, Special Agent of the Drug Enforcement Administration. The Affidavit (Appendix A hereto) set forth inter alia as follows:

"On March 26, 1975, a confidential informant advised the affiant that an individual by the name of John had offered to provide him with large quantities of methaqualone. According to the informant John identified his source for methaqualone as a clandestine laboratory in the Altoona, Pennsylvania area. The informant further noted that John said the methaqualone would not be available until approximately the second week of April. In addition, the informant noted that John said the source operated a photographic supply business in Altoona and obtained at least some of the chemicals from the Kodak company located in New York. John further advised the informant that one of the main ingredients in the manufacturing of methaqualone is N-Acetylanthranilic acid and that it is only available from Kodak in New York. The informant also was advised by John that the manufacturer had ordered enough N-Acetylanthranilic acid to produce 125 pounds of methaqualone once he received all of the precursors and that the manufacturer expected to receive this substance on or around April 10, 1975.

The informant again contacted the affiant on April 2, 1975. During this discussion the informant indicated that John had contacted him (informant) and advised that the quantity to be manufactured by John's source had been increased by approximately 200 pounds. The informant then stated that he placed an order for ten pounds with John.

On April 9, 1975, the informant again contacted the affiant and advised that John had again contacted him (informant). The informant advised that he had learned from John that the chemist had incurred some difficulty in paying for some of the chemicals and thus would not be producing the 200 pounds of methaqualone. The informant was advised by John that the manufacturing would now be done in a two step process. That initially approximately 60 pounds would be manufactured. John told the informant that there was a prior order for this quantity and thus he would not be able to deliver to the informant. He stated that, however, upon receipt of the money for the 60 pounds the chemist would then acquire the additional 100 kilograms of N-Acetylanthranilic acid and then manufacture additional methaqualone. Finally, John told the informant that the chemical processing would definitely occur between April 10 and 13." [Sic, errors in original]

The Affidavit further set forth that Agent Upton determined on March 27, 1975 that Professional Photographic Services, Inc. (hereinafter PPSI) of Altoona, Pennsylvania had ordered 35 kilograms of N-Acetylanthranilic acid which Eastman Kodak was in the process of making with an expected completion date of April 7, 1975. The chemical would then be tested on April 8th and shipped on April 8th or 9th, with an anticipated delivery date of April 10, 1975. The Agent also learned from Kodak that PPSI had purchased 35 kilograms of N-Acetylanthranilic acid and 55 gallons of O-Toluidine in December of 1974, and 75 kilograms of N-Acetylanthranilic acid in February of 1975.

The Rochester, New York Office of the Drug Enforcement Administration advised Agent Upton that it was a Leroy Foose of P. O. Box 1934, Altoona, Pennsylvania, who had placed the orders on behalf of PPSI, and that Kodak received checks signed by George L. Foose indicating his address as 6001 Sixth Avenue, Altoona, Pennsylvania 16602. The Rochester Office had also received information from Kodak that Leroy Foose had given them (Kodak) telephone numbers of 942-5762 (an unpublished number listed to George Foose at 6001 Sixth Avenue) and 944-1264 (listed to James J. Foose at the same address).

Robert Henderson, a chemist with the Drug Enforcement Administration, confirmed that the chemicals which John told the informant were necessary, were in fact required for the manufacture of "M". Agent Upton learned through Robert Liecht of Kodak that it (Kodak) was the only firm manufacturing N-Acetylanthranilic acid, and that the only legitimate use thereof was in the development of photographs. Kodak also advised that PPSI had increased its order from 35 kilograms to 110 kilograms of N-Acetylanthranilic acid and that Kodak had then contacted George Foose and advised him they would have to receive payment before delivery would be made. Foose indicated an inability to pay the full amount and said he would pay for 10 kilograms which he requested be shipped, and asked that the remainder of the order be held.

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